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Archive for November, 2009

Prof. Keith Swisher has posted a draft of his forthcoming article on pro-prosecution judges, judicial elections, and disqualification. Here is the abstract:

In this Article, I take the most extensive look to date at pro-prosecution judges and ultimately advance the following, slightly scandalous claim: Particularly in our post-Caperton, political-realist world, “tough on crime” elective judges should recuse themselves from all criminal cases. The contextual parts to this claim are, in the main, a threefold description: (i) the “groundbreaking” Caperton v. A.T. Massey Coal decision, its predecessors, and its progeny; (ii) the judicial ethics of disqualification; and (iii) empirical and anecdotal evidence of pro-prosecution (commonly called “tough on crime”) campaigns and attendant electoral pressures. Building on this description and the work of empiricists, we bridge the gap between these tough-on-crime campaign promises and subsequent tough-on-crime adjudications. And in the final analysis, the thesis — namely, that tough-on-crime judges should recuse themselves in most, and probably all, criminal cases in light of personal and systemic biases — is corroborated not just by Supreme Court reasoning and language, but even more importantly (at least from my perspective as an ethics professor), by the rules of judicial ethics. Thus, pro-prosecution judges and their not-too-sophisticated message — “me tough on crime, you soft on crime” — should cease and desist or be ceased and desisted.

Parts. Part I briefly describes elective judicial selection systems and thoroughly describes “tough-on-crime” judges, their messages, and their motivations. Part II, the core of the analysis, runs tough-on-crime judges through the constitutional, ethical, and other-legal frameworks of disqualification. All of these frameworks — some four or five different legal and ethical barriers, depending on one’s jurisprudential view — ultimately lead to the same place, mandatory disqualification. Part III critically appraises elective systems, the theoretical and economical costs that those systems impose on judges and litigants, and the alternatives, including broadly or narrowly targeted disqualification, public financing, and forced silence. By the Conclusion, the analysis has pointed strongly toward a broad-based, mandatory-disqualification remedy.

Professor Rotunda has recently published his proposal for an Inspector General for the Federal Courts, as part of a symposium issue on judicial ethics. Here is an abstract:

Many federal judges routinely fear criticism, but that fear is unwarranted. The public is rightly concerned that the procedure to investigate and discipline problem-judges is flawed, particularly in a few high-profile cases discussed in this article. Several recent indictments of federal judges add to the problem. As Judge Ralph Winter has acknowledged, the status quo is “not a confidence builder”. Judges should welcome an Inspector General for the Federal Courts, who could restore public confidence in the federal judicial discipline system. The Inspector General can investigate potential ethical violations and proceed in those few instances where more is needed. This solution is something that both the public and the judiciary should welcome. Congress can create an Inspector General with appropriate safeguards that will keep our judiciary independent (because no one favors a dependent judiciary) and will keep our judiciary accountable (because no one favors a judiciary that is above the law).

The Wisconsin Supreme Court recently became the first state court to take post-Caperton, rule-based action. (Michigan recently became the second; for more information, click here.) Putting the merits to the side — ignoring them altogether, actually — the Wisconsin Supreme Court should be commended for taking expeditious action following the Supreme Court’s groundbreaking Caperton decision. The praise ends there, unfortunately. In a puzzling, recalcitrant move, the court adopted two rule amendments that appear to ignore both Caperton and its interpretation of the Due Process Clause. Combining the amendments, they essentially state that contributions or expenditures — from any source and irrespective of amount — to elective judges in Wisconsin do not alone warrant recusal/disqualification. That is not a brief restatement, but rather, a nearly exhaustive statement of the amendments (to verify, click here and here for the full text of the adopted amendments). A state supreme court rule purporting to limit the reach of Caperton and constitutional due process seems anomalous; how such amendments are anything but scoffing and heel-digging remains to be explained. Interestingly, the vote of the court was a deep split of 4-3, with Justice Gableman in the majority.

One point of caution, at this early stage, is that we are reading from mere tealeaves. The Wisconsin Supreme Court has not as yet published its orders or issued a press release. One can hope that the court will explicate in what ways, if any, these amendments constitute learned contributions to the law of disqualification.